The High Court has in a 6:1 decision, Tajjour & Ors v The State of New South Wales, upheld the validity of section 93X of the Crimes Act 1900 (NSW). (([2014] HCA 35.))

Section 93X was introduced in 2012 and relevantly provides:

“(1) A person who:
(a) habitually consorts with convicted offenders, and
(b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders,
is guilty of an offence.”

Section 93X is similar in its language to ss 557J and 557K(4) of the Criminal Code (WA). ((The parallels were noted by French CJ in Tajjour at [26].)) However the WA provisions are, as presently formulated, limited to declared drug traffickers and child sex offenders.

Mr Tajjour and two others stood charged with offences contrary to s 93X. Mr Tajjour and his co-accused each alleged, in a special case brought under r 27.08 of the High Court Rules 2004, that s 93X was invalid on the ground that it infringes the implied freedom of political communication.

Notably none of the plaintiffs alleged that they had been engaged in a political discourse during the events that gave rise to their being charged with contravening s 93X. As Justice Gageler noted ((At 175. And see also Hayne J at [73].)) “Each party chose to present a highly abstracted all-or-nothing argument for or against invalidity.”

The reasons in Tajjour

Each of their Honours (other than Keane J) approached the issue by asking two questions initially formulated in Lange v Australian Broadcasting Corporation, namely:

Firstly, does the impugned law effectively burden the constitutional freedom of political communication?

Secondly, if and only if the answer to the first question is “yes”, is the impugned law reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government?

The Chief Justice, in the sole dissenting judgment, agreed with the plaintiffs that s 93X was an impermissible burden on the implied freedom and was thus invalid.

In joint reasons Justices Crennan, Kiefel & Bell found that s 93X was an effective burden on the freedom, and focused on the second question. ((At [108] and [109].)) Their Honours concluded that s 93X went “no further than is reasonably necessary in order to achieve its object” and was thus a permissible burden on the freedom.

Justice Hayne similarly held that s 93X was “rationally connected to [the] legitimate end [of] preventing crime.” ((At [78]))

Justice Gageler’s reasoning has more in common with that of French CJ than with the joint judgment. His Honour found that s 93X impermissibly infringed the implied freedom of political communication. However he found that in a suitable case (which this was not) the offending aspect could be severed, leaving the regime with work to do in those cases where the freedom was not infringed. ((At [163] to [167].))

Justice Keane construed the word “consorts” differently to the rest of the bench. As a result he held that s 93X was not an effective burden on the implied freedom. As such his Honour did not need to consider whether it was proportionate. Specifically Keane J found ((See for instance at [185] and [202].)) that mere communication (which is the concern of the implied freedom) could not amount to consorting for it lacked sufficient personal intimacy. With the greatest of respect his Honour’s conclusion appears to be founded upon an analysis of the case law concerning much older consorting offences which have been around for over a hundred years. ((See for instance at [206] to [220].)) His Honour’s approach does not, to my eyes, place primacy upon the text of s 93X and its related provisions.

Possible consequences of the decision

In many cases, provisions such as s 93X could be used by the police to achieve similar ends to anti-association laws. Such laws have been enacted around the country and have been (and remain) the subject of ongoing constitutional challenges. See for instance Kuczborski v The State of Queensland which was argued before the High Court in September 2014. ((The judgment remains reserved. For more information see the High Court’s website or the University of Melbourne’s Opinions on High blogpost.))

Western Australia’s anti-association laws can be found in the Criminal Organisations Control Act 2012 and ss 221E & 221F of the Criminal Code. These laws came into effect in November 2013. As best I have been able to ascertain, they are yet to be used. Certainly there does not appear to be any case law on their operation as yet.

I would not be surprised to see a non-consorting law of more general application introduced in WA and other states in light of Tajjour.

Other arguments raised in Tajjour

The plaintiffs also argued:

  • That s 93X was invalid as being contrary to a treaty entered into by the Commonwealth executive government (but not given effect to by Commonwealth legislation), and
  • For an implied freedom (to be found in the Commonwealth Constitution) independent of the implied freedom of communication on governmental and political matters.

Not surprisingly, each of these alternatives bases was unanimously rejected.